People ex rel. Smith v. Mullin

25 Wend. 697

• Court: New York Supreme Court
• Decided: October 15, 1841
• Status: Published

Opinion

The relator, imprisoned on an execution in an action of assault and battery, presented a petition to a supreme court commissioner, praying a discharge from imprisonment on compliance with the -provisions of the sixth article, of title first, of the fifth chapter of the second part of the Revised Statutes, relative to voluntary assignments by a debtor imprisoned in execution in civil cases, 2 R. S. 31. On the day of shewing cause, the commissioner refused to grant the discharge, on the ground that the relator being a minor, an assignment by him of the property set forth in the account annexed to his petition, would be invalid. The above facts appeared on a return to an alternative mandamus. A motion was now made for a peremptory mandamus which was granted by the chief justice, who held that an infant, as well as an adult was entitled to the benefit of the act, which is general in its terms,1 viz: “ every person” “ may at any time petition,” &e. Besides the relief from imprisonment being so highly beneficial to the petitioner, his act in making an assignment must in law be regarded as valid notwithstanding his non-age.

Motion granted.